The facts are fully stated in the opinion in Four Hundred Sixty-one Eighth Avenue Co., Inc., v. Childs Co., decided by this court February first, last (181 App. Div. 742). In that action the grantee of the purchaser at the foreclosure sale sought to recover the rent of the premises for the remaining term of the lease. This action is by the mortgagee in possession, who was also the purchaser at the foreclosure sale, to recover rent for the period after the judgment until it sold the premises. The judgment herein was *231for the full amount of such rent. The rent for the time between the foreclosure sale and the conveyance by the purchaser at such sale is within the principles governing the former decision, and to that extent is determined adversely to the plaintiff. The question to be determined upon this appeal is the plaintiff’s right to rent for the period between the judgment and sale in the foreclosure action. The judgment was served upon the attorneys for this defendant on May 1, 1914. It removed from the premises May 5, 1914. The foreclosure sale was had on March 19, 1915. The mortgage contained the usual clause assigning the rents as further security for the loan, and upon the commencement of- the foreclosure action the owner of the equity of redemption by a formal instrument in writing assigned the rents to the plaintiff, giving it the right to institute and carry on all legal proceedings necessary for the protection of the property including such proceedings as may be necessary to recover possession of the whole or any part of the property, and to institute and prosecute any suits for the collection of rents and to institute and prosecute summary proceedings. The plaintiff became thereby a mortgagee in possession, and remained such until the sale under the decree of foreclosure. The fact that the tenant was made a party showed the election and determination of the plaintiff that the lease should terminate and be canceled and that the tenant should be removed from the premises. Until judgment the rights of the parties did not become fixed, but the effect of the judgment was to cut off and bar the tenant from all rights in the premises, except the right to possession until the sale, when it was hable to summary ejectment by the sheriff. In my opinion, after the judgment the defendant was in the same position as a tenant, who, having been served with a precept in summary proceedings, removes before service of the warrant, which has been repeatedly held to be within the tenant’s rights. In such case, by the issuance of the precept the right to remove from the premises and effect a cancellation of the lease comes to the tenant, and he is not bound to remain in the premises until he is removed by the marshal under the warrant, but has the right to seek other premises, and remove thereto without being liable to pay rent under two leases. (Cornwell v. Sanford, 222 N. Y. 248.) *232In principle there can, in my opinion, be no distinction made in such a case and the instant case.
The defendant conducted a business upon these premises. It was necessary to find another store, fit it up, and remove to it. It was not required to remain on the premises awaiting the sale and a writ of assistance, and after its effects had been put upon the street attempt to find another place in which to transact its business. The plaintiff accomplished its purpose of obtaining possession of the premises unincumbered with the lease. As the" rent was payable in advance on the first of each month, the rent for the month of May had become due prior to the defendant’s removal, and the plaintiff is entitled to recover that rent.
The judgment should be reduced to $666.67, with interest from May 1, 1914, together with the costs of the action, and as modified affirmed, with costs to the appellant.
Clarke, P. J., and Shearn, J., concurred; Laughlin and Dowling, JJ., dissented.